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1 MAKING CLASS ACTIONS WORK: THE UNTAPPED POTENTIAL OF THE INTERNET * Robert H. Klonoff, Mark Herrmann, and Bradley W. Harrison INTRODUCTION Over twenty years ago, the Supreme Court recognized that in class action litigation, absent class members must receive notice plus an opportunity to be heard and participate in the litigation, whether in person or through 1 counsel. Although the absent class members rights to receive notice and an opportunity to opt out are of vital importance, the ability to be heard and participate in the litigation are also important. 2 Despite the benefits of participation by absent class members, class action case law and commentary have focused more on maximizing efficiency than on protecting an individual class member s ability to participate in the 3 litigation. Indeed, the Supreme Court itself has recognized that, within existing class action practice, absent class members normally do nothing. 4 * Robert H. Klonoff. Dean and Professor of Law, Lewis & Clark Law School. Dean Klonoff is co-author, with Edward K. M. Bilich and Suzette M. Malveaux, of the casebook CLASS ACTIONS AND OTHER MULTI-PARTY LITIGATION: CASES AND MATERIALS (2d ed. 2006), and is the author of CLASS ACTIONS AND OTHER MULTI-PARTY LITIGATION IN A NUTSHELL (3d ed. 2007). He previously served as a partner at Jones Day and has personally handled more than 100 class action cases. He is Associate Reporter for the American Law Institute s ongoing project, Principles of the Law of Aggregate Litigation. See PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION (Preliminary Draft No. 5, 2008). Mark Herrmann. Partner, Jones Day (Chicago, Illinois). Mr. Herrmann is the author of THE CURMUDGEON S GUIDE TO PRACTICING LAW (2006), and is co-author of STATEWIDE COORDINATED PROCEEDINGS: STATE COURT ANALOGUES TO THE FEDERAL MDL PROCESS (2d ed. 2004). He co-hosts the Drug and Device Law Blog, From 1997 through 2007, he taught Complex Litigation on the adjunct faculty of Case Western Reserve University School of Law. Bradley W. Harrison. Associate, Jones Day (Cleveland, Ohio). 1. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). 2. See, e.g., Patrick Woolley, Rethinking the Adequacy of Adequate Representation, 75 TEX. L. REV. 571, 630 (1997). 3. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (citing JACK WEINSTEIN, INDIVIDUAL JUSTICE IN MASS TORT LITIGATION: THE EFFECT OF CLASS ACTIONS, CONSOLIDATIONS, AND OTHER MULTIPARTY DEVICES (1995)) (discussing the efficient use of court resources and the conservation of funds in aggregate litigation); William W. Schwarzer, Settlement of Mass Tort Class Actions: Order Out of Chaos, 80 CORNELL L. REV. 837 (1995). 4. Shutts, 472 U.S. at 810 ( [A]n absent class-action plaintiff is not required to do anything. He may sit back and allow the litigation to run its course, content in knowing that there are safeguards provided 727

2 728 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 69:727 Instead of fostering true participation by absent class members, courts have accepted alternatives, finding that the rights of absent class members to receive notice and to opt out and the promise of adequate class counsel are 5 sufficient surrogates for actual participation. In the past, these substitute mechanisms for true involvement, although inadequate, may have been understandable because of the logistical difficulties in permitting absent class members to participate in the same manner as litigants in traditional bilateral litigation. 6 Class action litigation inherently focuses on the claims of large numbers of people. That concept is captured explicitly in Federal Rule of Civil Procedure 23(a), which requires, as a prerequisite to class certification, that 7 the class is so numerous that joinder of all members is impracticable. And, 8 although impracticable does not necessarily require large numbers, the requirement is usually fulfilled because of the large number of individuals involved. 9 Adjudicating the claims of large numbers of absent class members presents difficulties that do not exist in traditional bilateral litigation. In bilateral litigation, the parties have direct contact with their counsel and can obtain from them necessary information about the case and the litigation process in general. By contrast, class counsel have historically been unable to keep absent class members abreast of the progress of a specific class action case or to involve absent class members in litigation in any meaningful 10 manner. Until recently, these difficulties have precluded meaningful involvement by most absent class members, to the detriment of the entire class action process. for his protection. ). 5. See Geoffrey P. Miller, Rethinking Certification and Notice in Opt-Out Class Actions, 74 UMKC L. REV. 637, 641 (2006) ( [A]n interest in participation, taken alone, is not a significant due process concern when absent class members receive adequate representation. ). 6. But see Woolley, supra note 2, at 630 ( Adequate representation simply does not adequately protect the rights of class members who wish to actively participate in the litigation of their claims. We need not ignore this reality for practical reasons. ). 7. FED. R. CIV. P. 23(a). 8. See ROBERT H. KLONOFF, CLASS ACTIONS AND OTHER MULTI-PARTY LITIGATION IN A NUTSHELL (3d ed. 2007); ROBERT H. KLONOFF ET AL., CLASS ACTIONS AND OTHER MULTI-PARTY LITIGATION: CASES AND MATERIALS (2d ed. 2006). 9. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997) (noting the use of class action lawsuits to resolve claims too numerous to be resolved one-by-one); Dukes v. Wal-Mart, Inc., 474 F.3d 1214, 1222, 1224 (9th Cir. 2007) (affirming the certification of a class estimated to include more than 1.5 million women). 10. PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION 1.04 (Preliminary Draft No. 5, 2008).

3 2008] MAKING CLASS ACTIONS WORK 729 The internet has become entrenched in the American way of life and provides a mechanism through which absent class members right to participate meaningfully in class action litigation can be realized. Since September 2001, over half of the households in the United States have 11 maintained internet access. Even this enormous number, however, represents only part of the picture, because it fails to account for individuals who have access to the internet at work or through other channels, such as public libraries. Taking into account all means of accessing the internet, as of March 31, 2007, the percentage of Americans over the age of twelve with internet access is between 70% and 78% of the population. 12 People not only have access to the internet; they use it. The average American internet user accesses the web ten times and visits approximately to 26 different domains per week. Over the course of a week, the average 14 American internet user spends more than ten hours on the internet, and this usage is on the rise. For instance, a 2007 study by the Newspaper Association of America indicates that 62.8 million people per month visited online 15 newspaper websites in the fourth quarter of Comparing 2006 to 2005, the average unique audience for newspaper websites increased 22%. 16 Increasingly, people are regularly visiting portal websites and websites with extensive search capabilities, such as MSN.com, Yahoo, and Google, to guide 11. U.S. DEP T OF COMMERCE, A NATION ONLINE: ENTERING THE BROADBAND AGE 4 (2004), available at https://www.esa.doc.gov/reports/nationonlinebroadband04.htm. 12. America Internet Usage and Population Statistics, (last visited Sept. 12, 2008) (citing Nielsen//NetRatings and International Telecommunication Union). In its 2007 Digital Future Report, the USC-Annenberg Center for the Digital Future reports that 77.6% of Americans over the age of twelve go online. Center for the Digital Future, USC-Annenberg School for Communication, Highlights: 2007 USC-Annenberg Digital Future Project 4 (2007), center.org/pdf/2007-digital-future-report-press-release pdf (last visited Sept. 12, 2008) [hereinafter USC-Annenberg Digital Future Report]. 13. Nielsen//NetRatings, United States: Average Web Usage, resources.jsp?section=pr_netv&nav=1 (last visited Sept. 12, 2008) (reporting twenty-six website domain visits per week for the week ending March 10, 2008); see also THE PEW RESEARCH CENTER FOR THE PEOPLE AND THE PRESS, NEWS CONSUMPTION AND BELIEVABILITY STUDY 8 (2006), available at (reporting that the average internet user in the United States logs on to the internet ten times and visits twenty-six websites per week). 14. Id. (reporting ten hours, four minutes per week for the week ending Mar. 10, 2008). 15. Press Release, Newspaper Association of America, Online Newspaper Viewership Reaches Record in 2007 (Jan. 24, 2008), available at Online-Newspaper-Viewership.aspx. 16. Id.

4 730 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 69: their internet browsing. The internet has clearly become a vital communication, information, entertainment, and transaction tool. 18 This Article focuses on the capacity of the internet to foster true participation by absent class members. Part I of this Article examines how the internet is currently used in class action litigation. As the Article explains, although the internet has been used in some aspects of class action practice, that use has been limited and sporadic. Part II examines the full potential of the internet to increase absent class members participation. It offers concrete proposals for integrating the internet into virtually every aspect of the class action process. I. THE INTERNET TODAY The internet s ability to streamline and enhance class action litigation has not gone unnoticed. Courts and practitioners have begun to rely on the internet in the class action process. This section provides an overview of the current uses of the internet in class action litigation. 19 A. Providing Individual Notice to Class Members Providing notice to absent class members of the pendency of litigation and their membership in the class is the first step in involving these individuals. Indeed, [n]otice is a critical part of class action practice. Courts and commentators have long struggled with the difficulties associated with providing the best notice that is practicable under the circumstances, 17. THE PEW RESEARCH CENTER FOR THE PEOPLE AND THE PRESS, supra note 13, at U.S. DEP T OF COMMERCE, supra note 11, at 3. Time Magazine named You its 2006 Person of the Year based on Americans increased and dramatic use of the internet. Lev Grossman, TIME s Person of the Year: You, TIME, Dec. 25, 2006, at 38, available at 2006 WLNR (highlighting that the internet is a tool for bringing together the small contributions of millions of people and making them matter ). 19. Classifying websites by content or purpose poses difficulties. Among other things, it is not always clear whom the website targets or who sponsors the website. What appear to be public domain websites are often the product of interested legal, consulting, or marketing firms. See, e.g., Class Action Litigation Information, (last visited Sept. 12, 2008) (a website to provide a useful legal research source for attorneys and to assist the public in understanding class action litigation, government, and the legal system, operated by Timothy E. Eble, a class action lawyer). Although many of the websites discussed in this section may perform multiple functions, each is discussed under the heading that it best represents. 20. See FED. R. CIV. P. 23(c), (d)(2), (e)(1)(b), and (h)(1). 21. MANUAL FOR COMPLEX LITIGATION (FOURTH) (2004).

5 2008] MAKING CLASS ACTIONS WORK 731 including individual notice to all members who can be identified through reasonable effort. 22 A major source of difficulty is that people move across town, across the country, and to a lesser extent, throughout the world. According to the most recent report by the U.S. Census Bureau, roughly 14% of the entire United 23 States population moved during And they often move long distances. Although 57% of all movers remained in the same county as their previous residence, nearly 20% of movers left their previous state of residence, and % of movers went abroad. In terms of distance, 24% of intercounty movers relocated 50 to 199 miles, 19.7% relocated 200 to 499 miles, and 25.3% of intercounty movers relocated to a distance 500 or more miles from their previous residence. 27 Because the Census Bureau appears capable of tracking geographic mobility, it may create a false sense of ease in tracking individuals as they move. The truth is that it is very difficult to track the locations of individuals as they move. As one commentator recognizes, the traditional means for updating an individual s address after a move, such as accessing the National Change of Address database and relying on credit bureau records, are 28 limited. In some class action lawsuits, current correct addresses may be found for only 50% of identifiable class members. 29 Recognizing the difficulties in providing individual notice through direct mail, publication notice has become an entrenched component of class action 30 notification programs. But people do not read the newspaper as often or as 22. FED. R. CIV. P. 23(c)(2); Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974); see also Todd B. Hilsee et al., The Desire-to-Inform Requirement for Effective Class Action Notice is Highlighted by Katrina, 80 TUL. L. REV (2006); Jordan S. Ginsberg, Comment, Class Action Notice: The Internet s Time Has Come, 2003 U. CHI. LEGAL F. 739, 762 (2003). 23. U.S. CENSUS BUREAU, CURRENT POPULATION SURVEY, 2005 ANNUAL SOCIAL AND ECONOMIC SUPPLEMENT, tbl. 30 (2005), available at cps2005.html. Because of the manner in which this statistic is reported, the number may actually be much higher. 24. Id. 25. Id. 26. Id. 27. Id. 28. See Hilsee et al., supra note 22, at Id. at See, e.g., DeJulius v. New Eng. Health Care Employees Pension Fund, 429 F.3d 935, 947 (10th Cir. 2005) (holding that a notice program that included newspaper publication satisfied the notice requirement); Reppert v. Marvin Lumber & Cedar Co., 359 F.3d 53, 57 (1st Cir. 2004) (holding that publication notice in thirty-three newspapers satisfied the notice requirement as to a class member who did not receive direct mail notice).

6 732 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 69: diligently as they once did. The total circulation of all newspapers in the 32 United States amounts to fifty-one million copies daily. According to Journalism.org s Annual Report on American Journalism, daily newspaper circulation fell roughly 2.8% during 2006, with Sunday circulation down %. These losses are more significant than they appear because daily circulation had already fallen 12% (7.7 million copies) and Sunday circulation 34 had fallen 8% (4.9 million copies) between 1990 and Industry experts project that in a best-case-scenario, the declines will stabilize at approximately 35 1% annually within the next couple of years. Readership for all newspapers in the United States, which takes into account adults in the same household who share a single copy of the paper, pass along copies, and copies in public places read by several people, currently stands at million. Although the figure itself is quite large, it too is shrinking. Television s ability to notify absent class members is also suffering. Television notice campaigns usually come with an exorbitant price tag. 38 These costs have historically posed the largest barrier to television-based 39 notice programs. Advances in technology are also reducing television viewership. For instance, over 35% of internet users say they watch less 31. The decline of newspaper readership exacerbates the long-recognized problem that absent class members are not likely to encounter a legal notice published in a newspaper, even if they read the paper. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950) ( Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper s normal circulation the odds that the information will never reach him are large indeed. ). 32. THE PROJECT FOR EXCELLENCE IN JOURNALISM, THE STATE OF THE NEWS MEDIA 2007: NEWSPAPERS, INTRO (2007), cat=1&media=3 (last visited Sept. 12, 2008) [hereinafter THE PROJECT FOR EXCELLENCE IN JOURNALISM, THE STATE OF THE NEWS MEDIA 2007]. 33. Id. 34. THE PROJECT FOR EXCELLENCE IN JOURNALISM, THE STATE OF THE NEWS MEDIA 2006, Overview, Audience (2006), (last visited Sept. 12, 2008). 35. THE PROJECT FOR EXCELLENCE IN JOURNALISM, THE STATE OF THE NEWS MEDIA 2006, Overview, 36. THE PROJECT FOR EXCELLENCE IN JOURNALISM, THE STATE OF THE NEWS MEDIA 2007, supra note In the first half of 2006, USA Today s readership fell 3% and the New York Times readership fell 5.8%. Newspaper Website Readership Up 31%, USA TODAY, Oct. 4, 2006, available at Although the Wall Street Journal has maintained its readership, it includes in that number individuals who access the Wall Street Journal online. Id. 38. See Ginsberg, supra note 22, at 759 (highlighting that a thirty-second prime-time commercial cost $150,000 to air and another $343,000 to produce in 1999). 39. Id. at

7 2008] MAKING CLASS ACTIONS WORK television since they began to use the internet. Also, with the advent of digital video recorders (DVRs), television may face a new difficulty: people may not watch commercials. The arrival of DVRs has provoked Nielsen Media Research, the main provider of national television-ratings data in the United States, to try to measure the number of people who actually view 41 commercials. Nielsen s new commercial ratings, once released, are expected 42 to reveal a drop in commercial viewership. In any event, courts have to consider the possibility that television-based notice programs, although still expensive, do not have unlimited ability to reach absent class members. As the traditional methods of providing notice have become increasingly ineffective and disfavored, internet notice programs are on the rise. Commentators and practitioners have recognized the internet s ability to play 43 a prominent role in class action notice programs. The Manual for Complex Litigation best summarizes the power of the internet in class action notice programs: Posting notices on dedicated internet sites, likely to be visited by class members and linked to more detailed certification information, is a useful supplement to individual notice, might be provided at a relatively low cost, and will become increasingly useful as the percentage of the population that regularly relies on the internet for information increases. 44 Over time, courts have come to accept both and internet notice 45 campaigns as acceptable means of giving notice in class actions. Indeed, 40. See USC-Annenberg Digital Future Report, supra note 12, at See Brian Steinberg, Nielsen Delays Plan to Release Viewership Ratings for TV Ads, WALL ST. J., Nov. 4, 2006, at A2 ( While Nielsen now measures how many people watch TV programs a rating used to set TV ad prices it hasn t previously released formal ratings showing how audience levels change during a commercial break. ). 42. Id. 43. See, e.g., Brian Walters, Best Notice Practicable in the Twenty-First Century, 2003 UCLA J.L. & TECH. 4; Ginsberg, supra note 22, at 760; Jeanne Finnegan, The Web Offers Near, Real-Time Cost-Efficient Notice, 22 AM. BANKR. INST. L.J. 30 (2003); Katherine Kinsella et al., How Viable is the Internet for Class Action Notice?, (last visited Sept. 12, 2008). 44. MANUAL FOR COMPLEX LITIGATION (FOURTH) (2004). 45. See, e.g., Nichols v. SmithKline Beecham Corp., No , 2005 U.S. Dist. LEXIS 7061, at *29-35 (E.D. Pa. Apr. 22, 2005) (holding that internet notice will be deemed adequate so long as it is combined with other forms of notice such as mailers); House v. GlaxoSmithKline PLC, No. 2:02CV442, 2005 U.S. Dist. LEXIS 33711, at *8 (E.D. Va. Jan. 10, 2005) (holding that hosting a website dedicated to the pending litigation and providing other forms of traditional notice to class members fulfilled the notice requirement found in Rule 23); In re Global Crossing Sec. and ERISA Litig., 225 F.R.D. 436, (S.D.N.Y. 2004) (holding that internet notice combined with other forms of notice, including mailed

8 734 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 69:727 courts are beginning to embrace the belief that internet notice may be preferable to traditional methods of publication notice. 46 Internet notice may be implemented in various ways. Banners may be 47 placed on targeted websites. Notices themselves may be published on 48 websites class members are likely to visit. Notices may also be ed to 49 class members directly. As with traditional notice programs, a combination of methods may be used. Many companies specialize in tailoring notice programs, including internet notification, to specific class actions. 50 Regardless of the individual delivery mechanisms, the internet has quickly become a mainstay in class action notice programs. As a result, more class members may become aware of the class actions to which they are parties and, ultimately, can participate more directly in those actions. B. Publicizing Pending Class Action Lawsuits In addition to internet notice programs, a growing number of websites provide information and links about specific class action lawsuits. On one level, these websites serve the same purpose as the notice programs described individual notice packets, satisfied Rule 23). 46. See, e.g., Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781, 786 (7th Cir. 2004) ( [I]n this age of electronic communications, newspaper notice alone is not always an adequate alternative to individual notice.... The World Wide Web is an increasingly important method of communication, and... an increasingly important substitute for newspapers. (citing Walters, supra note 43)). 47. See, e.g., In re Briscoe, 448 F.3d 201, 207 (3d Cir. 2006) (affirming the trial court s decision that the notice, including banner advertisements on the [i]nternet directing class members to the official settlement website proved to be highly successful ). 48. See, e.g., In re Stock Exchs. Options Trading Antitrust Litig., No. M-21-79(RCC), 2006 U.S. Dist. LEXIS 87825, at *23-24 (S.D.N.Y. Dec. 4, 2006) (holding that a notice program that included posting the Summary Notice of Proposed Settlements and Hearing Thereon on an Internet Business Wire website proved reasonable and adequate). 49. See, e.g., Lucas v. Kmart Corp., No. 99-CV JLK, 2006 U.S. Dist. LEXIS 51439, at *19 (D. Colo. July 27, 2006) (holding that including notice in a notice program went above and beyond that required by law ). 50. See, e.g., Hilsoft Notifications, (last visited Sept. 12, 2008); Epiq, (last visited Sept. 12, 2008) ( We are industry leaders in full-service class action notice and bankruptcy notice plan design, implementation and analysis. Epiq has developed more than 200 notification programs and placed more than $225 million in media notices. ); Garden City Group, informationtechnologies.html (last visited Sept. 12, 2008) ( The cornerstone of our success lies in our proprietary software. Not only do our claims processing systems virtually eliminate paper handling, but they also allow for immediate access to case details at any level. ); The Notice Company, (last visited Sept. 12, 2008) ( We also provide internet consulting, web design and hosting services. ); Class Action Administration, Inc., (last visited Sept. 12, 2008).

9 2008] MAKING CLASS ACTIONS WORK 735 above: to alert class members about class actions that will determine their rights and to involve those class members in either litigation or a settlement. On another level, these websites are educational portals that provide information on everything from the most basic rules to the most complex issues in class action litigation. Viewed on a continuum, these websites span from non-soliciting/content-neutral to non-soliciting/content-motivated to soliciting/content-motivated. 1. The Non-Soliciting/Content-Neutral Websites Non-soliciting/content-neutral websites are independent. They lack any specific ties to plaintiffs firms, defense firms, referral services, or any other content-motivated entity. They provide information about class action 51 lawsuits as an end in and of itself. They serve as informational hubs through which absent class members and other individuals can gather information without concern for bias or distortion. Examples of these websites are described below. FindLaw.com is operated by the West Group, and it purports to be the highest-trafficked legal Web site, providing the most comprehensive set of legal resources on the internet for lawyers, businesses, students and individuals. Its Class Action and Mass Tort Center provides overviews, news, Frequently Asked Questions sections, and additional links 54 for products and services relating to class actions. The information is 55 organized by product and covers everything from Accutane to Zyprexa. The website also provides recall announcements from the Consumer Product 56 Safety Commission and the Food and Drug Administration. Given the 57 amount of time internet users spend searching for product information and FindLaw s dominant web presence, the website has a fair likelihood of informing consumers potential class members of pending litigation. 51. This is not to suggest that the companies that sponsor these websites are not motivated by the financial gains derived from providing this information. These companies profit, however, by providing information itself not from whether website visitors pursue their claims after obtaining the information supplied. 52. FindLaw, About FindLaw, (last visited Sept. 12, 2008). 53. FindLaw Class Action Center, (last visited Sept. 12, 2008). 54. See, e.g., FindLaw For the Public, (last visited Sept. 12, 2008). 55. FindLaw Class Action Center, supra note Id. 57. See supra notes and accompanying text.

10 736 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 69:727 Stanford Law School s Securities Class Action Clearinghouse (the Clearinghouse) is a website dedicated to providing detailed information on the prosecution, defense, and settlement of federal class action securities 58 fraud litigation. The Clearinghouse serves as the Designated Internet Site for securities class actions brought within the Northern District of California. 59 The Clearinghouse maintains the most comprehensive information on securities fraud class actions on the internet. It indexes the 2,735 issuers that have been named in federal class action securities fraud lawsuits since passage 60 of the Private Securities Litigation Reform Act of 1995 and maintains copies of more than 26,000 complaints, briefs, and other litigation-related materials filed in these cases. 61 The Class Action Lawsuits website is designed to give the average non-lawyer an idea of what a class action lawsuit entails and how it operates. 62 The website has links to information on lawsuits and filings in various 63 insurance, technology, tobacco, and securities class actions. Additionally, the website provides a contacts section designed to put class members in touch with individuals who may have information about their lawsuit or with 64 attorneys who may be able to handle a lawsuit. Along these same lines, 65 FreeAdvice.com offers information and as is advice on many legal topics and issues, including a section dedicated to litigation, and specifically to class 66 actions. It provides general information, information about product liability class actions, and California-specific information. 67 Class Action Litigation Information, unlike the previously described 68 websites, is geared to more legally sophisticated internet users. It purports to provide a useful legal research source and contains links to, among other 58. Stanford Securities Class Action Clearinghouse, (last visited Sept. 12, 2008). 59. See id. 60. Id. 61. Id. 62. See Class Action Lawsuits, (last visited Sept. 12, 2008). 63. Id. 64. Class Action Lawsuits, Legal Contacts for Class Actions, contacts.htm (last visited Sept. 12, 2008). 65. FreeAdvice, (last visited Sept. 12, 2008). 66. See FreeAdvice, Litigation Class Actions Center, _actions (last visited Sept. 12, 2008). 67. See id. 68. See Class Action Litigation Information, (last visited Sept. 12, 2008).

11 2008] MAKING CLASS ACTIONS WORK 737 things, the Class Action Fairness Act of 2005, Rule 23 of the Federal Rules of Civil Procedure, the Manual for Complex Litigation, and other legal 69 reference tools. The site also contains brief summaries of various class actions The Non-Soliciting/Content-Motivated Websites Like the websites discussed above, non-soliciting/content-motivated websites provide information as an end in and of itself. However, unlike the websites discussed above, the information provided is not neutral. These websites, like those discussed below, are clearly agenda driven. But instead of selling legal services, these websites sell ideas. As we discuss non-soliciting/content-motivated websites, we are primarily discussing legal blogs, or blawgs. Blogs are rapidly growing in popularity, and no discussion of the internet is now complete without 71 acknowledging them. Both legal scholars and practitioners host legal blogs. 72 Sites hosted by scholars include the Mass Tort Litigation Blog, Point of Law, and Products Liability Prof Blog. Sites hosted by practitioners include the Drug and Device Law Blog, OverReg d, Class Action Fairness Act Blog, and Class Action Defense Blog. These websites serve as regularly updated internet journals and provide commentary on a wide variety of topics. 69. Id. 70. See id. 71. The number of internet users that maintain blogs has doubled in the last three years. USC- Annenberg Digital Future Report, supra note 12, at 2. A leader in blog tracking, Technorati was tracking over 82 million blogs as of May Technorati: About Us, (last visited Sept. 12, 2008). There are also a number of websites dedicated to tracking legal blogs. See, e.g., (tracking over 1,000 legal blogs); (another website tracking legal blogs). 72. Mass Tort Litigation Blog, (last visited Sept. 12, 2008). 73. PointofLaw.com, (last visited Sept. 12, 2008). 74. Products Liability Prof Blog, (last visited Sept. 12, 2008). Both the Products Liability Prof Blog and the Mass Tort Litigation Blog fall within the Law Professors Blog Network. See Welcome to Law Professor Blogs, (last visited Sept. 12, 2008). 75. Drug and Device Law, (last visited Sept. 12, 2008). 76. Over Reg d Blog, (last visited Sept. 12, 2008). 77. CAFA Law Blog, (last visited Sept. 12, 2008). 78. Class Action Defense Blog, (last visited Sept. 12, 2008).

12 738 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 69:727 The blogs we are most concerned with are those that provide analysis of the issues involved in class action and other complex litigation. For example, the CAFA Law Blog, by its own account, is the leading online resource for information, case analyses, and insights regarding the Class Action Fairness 79 Act of Its interactive website provides information on the 80 development of class action litigation in the post-cafa era. The Class Action Defense Blog is intended to be a resource for class action defense lawyers and posts summaries of pending class actions with defense-oriented analysis as well as other information on the development of class action litigation The Soliciting/Content-Motivated Websites Soliciting/content-motivated websites give potential plaintiffs the opportunity to become involved in class action lawsuits. These websites do not provide information about class actions as an end in and of itself. Instead, these websites solicit clients by providing information on pending or possible class action lawsuits. These sites are often managed by plaintiffs firms, interest groups, third-party referral service companies, or other economically 82 motivated parties. Because these groups are attempting to attract clients, their websites are driven by the motive to notify and involve potential class 83 members. Representative examples of these motivated websites are described below. The website of Milberg LLP, a prominent plaintiffs firm, has a Case Information section that allows internet users to Report a Fraud, or join 84 [Milberg s] List. The firm also dedicates webpages to many of its 79. Class Action Fairness Act Blog: About Us, (last visited Sept. 12, 2008). 80. See id. 81. See id. 82. Defense firms also devote webpages to their class action practices. See, e.g., Jones Day, Services, Class Action Litigation, Overview, (last visited Sept. 12, 2008); Latham & Watkins, LLP., Class Actions and Multi-District Litigation, Practices.aspx?page=practicedetail&practice=212 (last visited Sept. 12, 2008); Sidley Austin LLP, Class Action and Multidistrict Litigation, (last visited Sept. 12, 2008); Winston & Strawn LLP, Class Actions, (last visited Sept. 12, 2008). Presumably, these websites are designed to attract defendants threatened with or involved in class action litigation. 83. See Unger v. Amedisys Inc., 401 F.3d 316, 320 (5th Cir. 2005) ( As is often the case, plaintiffs lawyers solicited potential class members over the internet and through newspaper advertisements. ). 84. Milberg, (last visited Sept. 12, 2008).

13 2008] MAKING CLASS ACTIONS WORK 739 pending or potential class action investigations, including, for example, its investigation into a products liability action involving Medtronic s Sprint 85 Fidelis leads. Milberg s website makes clear that its driving purpose is to get potential class members involved in the litigation: If you or a loved one is impacted by these leads, we advise you to speak to your physician about the risks associated with them. We also ask that you contact us immediately.... You may be legally entitled to recover medical expenses, lost earnings, as well as compensation for physicial pain and suffering, mental anguish and physical impairment. 86 Motley Rice, another prominent plaintiffs firm, also explains its practice on its firm homepage. Many practice areas are identified, including Occupational, Environmental, Medical, Complex Cases, and 87 Catastrophic. By clicking on any of these practice areas, the internet user links to an informational page about Motley Rice s experience and the scope 88 of its practice in the area. The website contains input fields and contact information if individuals wish to explore [their] legal rights. 89 Motley Rice operates a website in addition to the firm s general website 90 that is dedicated to a specific type of class action. For example, Motley Rice 91 operates a website dedicated exclusively to mesothelioma litigation. This website provides a brief history of the firm s involvement with mesothelioma 92 litigation. The website also explains that [l]awyers from the Law Firm of Motley Rice LLC serve as national asbestos counsel with a network of 93 associated local lawyers throughout the country. As with its general website, Motley Rice s mesothelioma webpage features an input form for 85. See Medtronic Sprint Fidelis, (last visited Sept. 12, 2008). 86. Id. 87. See Law Firm of Motley Rice LLC, (last visited Sept. 12, 2008). 88. See, e.g., The Law Firm of Motley Rice LLC Catastrophic Injury, catastrophicinjury/default.asp (last visited Sept. 12, 2008) ( The attorneys of Motley Rice s catastrophic injury practice group represent individual victims and families affected by tragic events caused by dangerous consumer products, occupational and industrial accidents, fires, premises injuries and other calamities or negligent acts. ). 89. See id. 90. See Mesothelioma Lawyer, (last visited Sept. 12, 2008). 91. This website makes clear that it is operated by Motley Rice. Indeed, the firm s name appears conspicuously throughout the website and is explicitly featured in the contact us section. Id. 92. Id (last visited Sept. 12, 2008).

14 740 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 69:727 internet users to supply their contact information and inquire about their legal rights. 94 In addition to private law firms that undertake class action representations, non-profit organizations constantly battle in the courts on behalf of the interests of their members. Those organizations operate websites to rally support for particular causes and to inform the general public about activities taking place in the courtrooms across the country. 95 The Electronic Frontier Foundation (EFF) manages a website dedicated 96 to Defending Freedom in the Digital World. That website contains information on every lawsuit many of which are class actions in which the 97 EFF is involved. As one example, EFF highlights its class-action lawsuit against AT&T... accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive, illegal program to wiretap and data-mine Americans 98 communications. Unlike most law firm websites, EFF s website does not permit internet users to submit contact information or to seek legal advice. Rather, the website encourages donations and extra-judicial activities, such as 99 writing to legislators about particular issues. Nonetheless, the website informs interested individuals and absent class members of EFF s efforts and associated class action litigation. Public Citizen, a national, nonprofit consumer advocacy organization founded in 1971 to represent consumer interests in Congress, the executive 100 branch and the courts, operates a similar website. Like EFF, Public Citizen has a webpage dedicated to its litigation group that provides briefs from cases 101 in which the group is involved. On this webpage, an internet user can find 94. (last visited Sept. 12, 2008) ( Call us toll free... or fill out the form below.... ). 95. See, e.g., Electronic Frontier Foundation, (last visited Sept. 12, 2008) (highlighting recent activities); Public Citizen, Cases and Documents, briefs (last visited Sept. 12, 2008) (calling for support for Public Citizen s continuing litigation and other advocacy endeavors). 96. Electronic Frontier Foundation, (last visited Sept. 12, 2008). 97. Id. EFF posts press releases, news reports, legal documents, rulings, and links for further information on its website (last visited Sept. 12, 2008). 99. See, e.g., EFF s Action Center, at homepage (last visited Sept. 12, 2008) (allowing visitors to contact their representatives online about pending legislation) Public Citizen, About Public Citizen, (last visited Sept. 12, 2008) Public Citizen, Cases and Documents, (last visited Sept. 12, 2008).

15 2008] MAKING CLASS ACTIONS WORK class action notices, settlement objections, and other pleadings. This website increases awareness of Public Citizen s class action practice and the class actions themselves. As a result, an interested individual gains a greater opportunity to learn about the progress of litigation in which he or she may be a class member. ClassAction.com is not operated by either a law firm or an interest 103 group. By its own description, ClassAction.com is not a law firm but rather a venue that works with law firms to facilitate your ability to interact 104 with an attorney. Although there is no ostensible link between the website and any particular firm or group, the website looks and operates like the websites described above. The website lists products, services, companies, and medical conditions that lie at the heart of many of the nation s largest 105 class actions and would-be class actions. As the internet user clicks on each product or service, the site displays general information about the nature of the product and explains the allegations being made in pending or anticipated 106 litigation. The defining aspect of the website, like the plaintiffs firm websites described above, is the case evaluation form. The user inputs his or her contact information and submits a question relating to any of the products, 107 services, etc., listed on the website. A licensed attorney will then contact the user with an answer. As with the other websites described in this section, ClassAction.com provides a portal through which absent class members may become aware of, and actively involved in, litigation. LawyersandSettlements.com provides a service similar to that offered by 108 ClassAction.com. This website, like its counterpart, is equipped with search engines, topical lists, drop-down menus, and other mechanisms to guide 102. Public Citizen, Class Action, (last visited Sept. 12, 2008) (last visited Sept. 12, 2008) Id Id For example, the website s Vioxx page explains that Vioxx, a widely prescribed arthritis drug, has been taken off the market following the results of a three-year study linking use of the drug to higher incidence of heart attack and stroke. Classaction.com, Drugs, Vioxx, drugs-vioxx.cfm (last visited Sept. 12, 2008). Following the presentation of additional information, the webpage announces If you or someone you know has suffered serious side effects or injury that you believe may be related to your usage of Vioxx, you may be eligible to file a claim. Id.; see also action.com/drugs-ppa.cfm (last visited Sept. 12, 2008) ( If you or someone you know has experienced a stroke and had previously taken any of the medicines containing PPA, you may have a valid legal claim. ) Id Legal News and Legal Help, (last visited Sept. 12, 2008).

16 742 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 69:727 internet users to information regarding individual products, and ultimately to put the user into contact with an attorney by submitting a complaint form. 109 Despite the differences between the content-neutral websites and the content-motivated websites described in this section, the purpose and effect of the websites remain constant. The websites inform class members about pending or potential class action lawsuits and funnel prospective class members into law firms and claims-handling companies. They are access points only possible because of the internet for the as-yet uninvolved class member. C. Claims Administration Aside from internet notification programs, web-based claimsadministration programs constitute the most widely used internet tool in the class action process. In many recent class action settlements, websites exist for administering claims. These websites supplement traditional methods of 110 distributing and processing claim forms. Because these websites are often 111 removed from the internet after all claims have been processed, tracking their development or maintaining an accurate record of their existence is difficult. Enough of these websites remain, however, to explain what they entail. Claims administration websites provide notice of class action settlements and foster class members participation in those settlements. The websites typically provide the official notice or some other description of the settlement, provide a mechanism for class members to ask questions (through internet submission or a telephone number), and allow the internet user either to print or submit directly a claim form. The Masonite Class Action Settlement website is dedicated to providing 112 settlement information for three settled Masonite class actions. The 109. See, e.g., Zyprexa, Diabetes, and Weight Gain, case/zyprexa.html (last visited Sept. 12, 2008) ( If you have or a loved on[e] has taken Zyprexa and suffered from diabetes or hyperglycemia, you may qualify for damages or remedies that may be awarded in a Zyprexa class action or lawsuit. Click the link below to send your Zyprexa complaint to a lawyer.... ) See, e.g., Worldcom Securities Litigation, (last visited Sept. 12, 2008) (providing electronic access to the notices and claim forms previously sent to class members through traditional mail and information about submitting claim forms) See, e.g., In re PayPal Litigation website, at (last visited Sept. 12, 2008) Masonite Class Action Settlement Website, (last visited Sept. 12, 2008).

17 2008] MAKING CLASS ACTIONS WORK 743 websites for the individual class actions briefly explain that settlements have 113 been reached. They also provide the formal notices-of-settlement and claims form as well as a FAQ section that explains the settlement and 114 claims processes. Class members can print a duplicate claim form to submit 115 in hard-copy. If the class member has additional questions, the website provides a toll-free number. 116 Similarly, the In Re Literary Works in Electronic Databases Copyright Litigation website, dedicated to accepting claims submissions for that lawsuit, 117 provides details of the claims administration process. In addition to providing a claim form, the website also provides an opt-out form during the 118 opt-out period. Moreover, this website allows class members to submit comments, although it is unclear to what end. 119 Because specialized companies typically handle claims administration for class actions, these companies often list on their websites all class actions for which they serve as claims administrator. These companies are thus able to bring together information on multiple class actions. The HR&S Claims 120 Administration website, operated by Heffler, Radetich & Saitta LLP, contains links to every case in which HR&S serves as claims administrator. 121 Like the other sites mentioned here, it provides information to class members regarding submitting and processing claims See, e.g., Masonite Omniwood, (last visited Sept. 12, 2008) Id Id Id In Re Literary Works in Electronic Databases Copyright Litigation, Copyright Settlement (last visited Sept. 12, 2008). The In Re Literary Works in Electronic Databases Copyright Litigation was brought by a group of three writers organizations and 21 freelance authors... against a group of commercial electronic databases and print publishers, alleging that they had infringed the copyrights of thousands of freelance contributors to newspapers, magazines, and other print publications. Copyright Settlement, Frequently Asked Questions, faq.php3#1 (last visited Sept. 12, 2008) Id. (noting that details about claims administration process were sent to class members both by electronic notice and letter) Copyright Settlement, Comments, https://cert.tgcginc.com/edb/comments.php3 (last visited Sept. 12, 2008) HR&S Claims Administration, (last visited Sept. 12, 2008) HR&S Claims Administration, Cases, (last visited Sept. 12, 2008); see also Complete Claim Solutions, LLC, Listing of Settlements, (last visited Sept. 12, 2008) (providing a partial listing of settlements CCS is handling) Id.

18 744 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 69:727 If the notice and informational websites discussed above are the entrance points for absent class members to participate in litigation, then the claims administration websites are the exit points. By supplying absent class members notice of proposed class action settlements and the forms necessary either to participate in or opt-out of the settlement, these websites enhance absent class members ability to participate. D. Court-Administered Websites Although lawyers, litigants, and claims administrators are increasingly using the internet in class action litigation, courts are doing so to a much lesser degree. Although most courts have websites, few courts devote any domain space to their pending class action lawsuits. A survey of the United States district court websites reveals the scarcity of judicially operated class action websites. Of the ninety-four federal district court websites, only seven websites contain readily accessible information about pending class actions. 125 When courts decide to provide information regarding pending class 126 actions, they offer very detailed information. For example, the Middle District of Louisiana dedicates part of its website to the Brusly Barge Class 127 Action. Clicking on the link to this section immediately opens the 123. The search was conducted on September 12, There are eighty-nine district courts in the fifty states and another five in Puerto Rico, the Virgin Islands, the District of Columbia, Guam, and the Northern Mariana Islands. Each has a dedicated website. See U.S. Courts, (last visited Sept. 12, 2008) See Southern District of Indiana, (follow Case Information hyperlink; then follow Information on Class Actions hyperlink) (last visited Sept. 12, 2008); Eastern District of Louisiana, (last visited Sept. 12, 2008); Middle District of Louisiana, (follow Court Links hyperlink; then follow Brusly Barge Claims hyperlink) (last Sept. 12, 2008); District of Maine, (follow General Information hyperlink; then follow Class Action Litigation hyperlink) (last visited Sept. 12, 2008); Eastern District of Michigan, (follow Dow Corning Litigants hyperlink) (last visited Sept. 12, 2008); Southern District of Mississippi, (last visited Sept. 12, 2008); Eastern District of New York, (last visited Sept. 12, 2008); Southern District of Texas, (follow Notable cases hyperlink) (last visited Sept. 12, 2008). The websites contain readily available information when the website s homepage identifies a class action lawsuit by name or through a clearly-marked portal, such as class action information or notable cases All federal district courts offer the Public Access to Court Electronic Records (PACER) service, so presumably case information is available on all federal court websites. The focus of this Article, however, is not the labyrinth of available legal research tools, but sharing information with non-lawyers. Thus, PACER s availability is not discussed further here See Barge Release Class Action Information Packet and Legal Notice, available at The Barge Release Class Action

19 2008] MAKING CLASS ACTIONS WORK short-form notice for the litigation. The section also contains, in a single 129 location, all legal filings associated with the litigation. Additionally, some courts have begun experimenting with listservs to notify registered 130 individuals of the release of judicial opinions and orders. These court websites bring together and deliver information in a way that an interested non-lawyer can reasonably locate and use. In addition to the few courts that post information about pending class actions, the District Court for the Northern District of California requires parties to any suit containing a claim brought under the Private Securities Litigation Reform Act of 1995 to post various pleadings, briefs, and other 131 filings on a Designated Internet Site. Stanford s Clearinghouse website 132 usually serves as the Designated Internet Site. This local rule puts the onus of webposting on the parties themselves and relieves the court of the administrative duties associated with maintaining the website. Although the federal judicial system on the whole does little to post information about class actions on the internet, it employs the internet extensively for multidistrict litigation. The Judicial Panel on Multidistrict Litigation operates its own website, dedicated to all multidistrict litigation 133 (MDL) proceedings. The Panel determines whether cases pending in different federal courts should be centralized in one court for pretrial 134 proceedings. The Panel then assigns a judge or judges to conduct those arose from the release of air contaminants from a barge known as the FT-22 on the Mississippi River in Baton Rouge, Port Allen and Brusly, Louisiana occurring on or about April 27-28, Id. at Barge Release Class Action Notice, (last visited Sept. 12, 2008) Id. The Southern District of Mississippi gives similar treatment to the many Katrina-related cases pending in that court. Hurricane Katrina Insurance Orders and Opinions, (last visited Sept. 12, 2008) See, e.g., District of Maine Electronic Notification, elecnotification.htm (last visited Sept. 12, 2008) N.D. CAL. R The list of documents to be posted include pleadings, briefs, documents pertaining to class certification, expert witness reports, pretrial conference statements, settlement approval filings, and more. Id Stanford s Clearinghouse, discussed supra notes and accompanying text, clearly benefits from the Northern District of California s local rule. The website serves as a substitute for the court s and provides the wealth of information discussed above with negligible cost to the parties and little, if any, court involvement. See Walters, supra note 43; Joan Lambert, Stanford Law School s Securities Class Action Clearinghouse: Securities Litigation Meets the Web, INSIGHTS, July 1997, at See U.S. Judicial Panel on Multidistrict Litigation Home, (last visited Sept. 12, 2008). The Judicial Panel on Multidistrict Litigation was created by an Act of Congress in See 28 U.S.C (2000) See U.S. Judicial Panel on Multidistrict Litigation, Overview, General_Info/overview/overview.html (last visited Sept. 12, 2008).

20 746 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 69: proceedings. The Panel s website provides general information about the Panel, statistics on the Panel s activities, the rules employed by the Panel, the 136 Panel s hearing orders, and links to other judiciary websites. The website also provides a bimonthly list of all currently pending coordinated proceedings 137 and cases transferred to the Panel. From this list, visitors can access transferee district court web links and master docket information. 138 Many of the transferee district courts in turn have dedicated websites for the coordinated cases they are handling. Those local websites contain a wealth of information about the particular MDL proceeding. For example, the United States District Court for the Eastern District of Louisiana has a website dedicated to the now-settled MDL-1657, Vioxx Product Liability Litigation. 139 The website has a regularly updated Current Developments section that 140 details every event in the litigation, including information about 141 participating in the settlement program. Additionally, the website contains a Frequently Asked Questions section that covers everything from What is multidistrict litigation? to What information is available on the Court s website? and How can I be kept advised of the developments of this case? The website also provides various forms relevant to the litigation. Finally, the website maintains a public calendar of upcoming proceedings in 144 the litigation. Many similar websites exist for other multidistrict proceedings Id Id Id. The website offers the list in case-name alphabetical order by district and is grouped by type of MDL proceeding e.g., antitrust, contracts, products liability, and securities Id See Vioxx Product Liability Current Developments, (last visited Sept. 12, 2008). As the website explains the litigation: [T]he plaintiffs have filed suit alleging certain actual and potential risks associated with the medication known generically as Vioxx. Defendants Merck & Co., Inc. produced Vioxx to treat arthritis and acute pain. The plaintiffs contend that Vioxx caused death and other injuries to themselves or their family members who took Vioxx. Introduction, (last visited Sept. 12, 2008) Id Vioxx Product Liability, (last visited Sept. 12, 2008) Frequently Asked Questions, (last visited Sept. 12, 2008) Forms, (last visited Sept. 12, 2008). The forms offered on the website include: Counsel Contact Information Form, Check Request Form, Time and Expense Guidelines, Member Firm Time, Common Held Costs and Expenses, Final Plaintiff Profile Form, Final Merck Profile Form, and Final Authorization Forms. Id Calendar, (last visited Sept. 12, 2008) See, e.g., MDL-1203, In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products

Appendix D CASE STUDY METHODOLOGY Ideally, to evaluate the empirical support for assertions about the benefits and costs of Rule 23(b)(3) class actions, we would select a statistically representative sample

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